Canadian Employment Law Today - sample

November 9, 2016

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was the union's claim of discrimination unfounded? OR Did the Canada Post manager discriminate against employees based on disability and discrimination? IF YOU SAID the union's discrimination claim was unfounded, you're correct. e arbitrator noted that a claim of discrimination is "personal, not collective." Even if it is a group of individuals with a common characteristic being discriminated against, there must be a complaint of diff erential treatment that requires the company to justify the conduct causing the alleged discrimination. In this case, there were no actual complaints of discrimination from employees — just the grievance from the union. As a result, there was no real indication of discriminatory behaviour by Peixoto or Canada Post, said the arbitrator. e arbitrator found that the union's grievance consisted completely of speculation and the potential discriminatory eff ect of the event was dubious. ere was no evidence anyone missed the event because of a disability, and the nature of the activity wasn't tied to the religious aspect of Easter. " ere may not have been anyone absent on the day in question because of disability, as opposed to all of the other possible reasons for absence," the arbitrator said. " ere may not have been anyone suffi ciently off ended by the most secular of activities loosely related to a Christian religious holiday to be prevented from participating." ough anyone absent because of disability might fi nd it unfortunate to miss the Easter egg hunt, the arbitrator said any discriminatory eff ect could be "happenstance," since "such persons will always be disadvantaged in certain respects as compared to those in attendance." Still, there could also be advantages to being absent on certain days, and Canada Post couldn't be expected to deal with "every single diff erence between those who attend at work and those who do not because of disability," the arbitrator said. e arbitrator noted that even though the event was removed from the religious observance of Easter, it was still possible someone could be off ended by the fact it was tied to Easter. If that happened, Canada Post might have had to apologize, but it was unlikely any damages would result. As it was, no-one appeared to be off ended. e arbitrator found the Easter egg hunt at Canada Post's Brantford facility did not discriminate against certain employees because of disability and religion. e union's grievance was dismissed. For more information see: •Canada Post Corp. and CUPE (508-12- 00108), Re, 2016 CarswellNat 4888 (Can. Arb.). Union calls for ban to spring egg hunt THIS INSTALMENT takes us to a work- place with a manager who came up with the idea of celebrating Easter with an Easter egg hunt in the workplace — much to the dis- may of the union. Rob Peixoto was the local area manager for Canada Post's operations in Brantford, Ont. He enjoyed acknowledging and celebrating holidays and events at the workplace, so as Easter 2016 approached, he came up with an idea to get staff involved in the spirit of the holiday. On March 24, 2016, Peixoto posted a notice with a photograph of an Easter egg. e notice wished everyone a happy Easter and said that 10 Easter eggs were hidden throughout the letter carrier depot "in plain sight." e notice went on to say that em- ployees could look for the eggs and any that were found could be presented to Peixoto to exchange for a gift card. Peixoto himself pro- vided the eggs and gift card — Canada Post itself had nothing to do with the event. e Brantford local chapter of the Canadi- an Union of Postal Workers fi led a grievance complaining of Peixoto's Easter-themed event. It alleged that it discriminated against certain employees in two ways. First, the union claimed that employees who weren't at work that day because of a temporary disability suff ered discrimina- tion because they weren't able to participate in the event and get an opportunity to score the gift cards. Because of their disabilities, they were denied the chance at gift cards and therefore treated diff erently than employees who were able to go to work that day. Second, the union argued employees who weren't Christian and objected to participat- ing in the event for religious reasons also weren't given a fair opportunity at getting the gift cards — not to mention the potential off ence they might take due to the favouring of a Christian holiday for a workplace cel- ebration.

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